Lawsuit: South Carolina book ban regulation is unconstitutional

The Regulation’s prohibition on materials that depict or describe “sexual conduct” is overbroad in both libraries and classrooms. It mandates the removal of books that are not obscene and degrades the quality of course material. It violates the First Amendment and must be enjoined.

—South Carolina Association of School Librarians v Ellen Weaver

The South Carolina Association of School Librarians, along with three students, working with attorneys from the South Carolina American Civil Liberties Union, filed a federal district court complaint yesterday against Superintendent of Education Ellen Weaver, along with Greenville County schools.

The lawsuit argues that Weaver’s Regulation 43-170, which requires the State Board of Education to make sweeping decisions about which books are prohibited in the state’s public schools, violates the US Constitution.

First Amendment violation

The complaint argues that the regulation violates the First Amendment “because it is a content-based regulation that is substantially overbroad under the Supreme Court’s Ginsberg standard for obscenity”. The same standard was used in cases in Iowa and Florida which led to similar laws being struck down or blocked by the Courts.

In the Florida case, the Judge’s criticism of the law could clearly apply to South Carolina’s regulation; he wrote that the Florida law “does not evaluate the work to determine if it has any holistic value” and “does not specify what level of detail ‘describes sexual conduct.’”

The complaint, itself, repeats a similar refrain from critics of the regulation, pointing out the regulation does not include anything like “the three-part constitutional test for obscenity provided in Miller v. California, 413 U.S. 15 (1973)”. Without such a test, the Board can (and has) banned a wide variety of books, including some with widely recognized artistic and literary merit. According to Department of Education attorneys, Board members are explicitly not allowed to consider any worth a text might have once it is determined to (subjectively) contain “sexual content”.

“By omitting the Miller test,” the complaint argues, “the Regulation ignores constitutional limits on when the government may lawfully suppress sexual content.”

As the complaint points out, providing “obscene” material to minors is already illegal: “Thus, the Regulation only applies to materials that are not legally obscene.”

“Unconstitutionally vague”

The complaint also argues that the regulation in South Carolina is “unconstitutionally vague under the Fourteenth” amendment because school employees can’t predict how it will be applied.

Since the regulation was introduced and ultimately enacted in 2024, many members of the public (including myself) have pointed out that its language is overly vague. As we predicted, and as the suit specifically points out, the Board went on to retain some books (most notably 1984) which do contain “descriptions of sexual conduct” while banning others (like Flamer) which arguably do not contain any such descriptions.

As the complaint puts it, “the Board opted to review George Orwell’s 1984 on its own initiative. Despite 1984 describing the very sexual acts the Regulation seeks to suppress, the Board opted to retain the book.”

The complaint includes a short passage from 1984 which explicitly violates the language of the Regulation, arguing that this kind of inconsistent application of the Regulation further confuses the librarians and other school employees who will lose their licenses, and potentially “their careers,” if they are punished by the Board for a violation.

This vagueness has led to wide inconsistency across the state. As the complaint points out, one district, Berkeley County School District, blocked the academic research database Discus (provided by the State Library) for all students in February, citing the regulation. According to the complaint, the State Library’s director then reached out to the South Carolina Department of Education in July asking that they supply a statement that Discus complied with the regulation. The Department has not issued such a statement, three months into the school year, creating a risk that more districts will ban or restrict Discus.

(Berkeley County ultimately chose to allow high school students to access the database, but this, in itself, confuses the issue, since if Discus does contain sexual content, the regulation does not permit its use by any student.)

The Censorship Memo.

In addition to the regulation, the lawsuit challenges Weaver’s March 14, 2025, memorandum (which it calls “The Censorship Memo”) which “mandates… viewpoints” on gender, sexuality, race, and other subjects:

The Censorship Memo requires educators to proclaim that there are only two genders, male and female, and prohibits discussion of any ideology that disagrees with Defendant Weaver’s views on gender. It further prohibits educators from discussing public debates surrounding race, including any suggestion that the United States is or ever has been “racist, sexist, or otherwise discriminatory.”… The Censorship Memo’s only purpose is to impose ideological discipline.

Screenshot from the end of SCASL’s complaint.

The complaint asks the Court to block both the regulation and the memorandum as it considers whether the materials violate the First and Fourteenth Amendments.

To support this work:

Further reading:

Laird, Skylar. “SC rule barring books with ‘sexual conduct’ from K-12 schools is unconstitutional, lawsuit claims”. The South Carolina Daily Gazette. October 8, 2025.

Bowers, Paul. “Students and Librarians Take S.C. Superintendent to Court Over Censorship Rules”. The ACLU of South Carolina. October 7, 2025.